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27 Oct 2011

Integrity and accountability in the Queensland public sector - Review of the Integrity Act 2009

by Barry Dunphy, Eleanor Dickens

The Integrity Act Issues Paper outlines the nine key questions for consultation as posed by the Queensland Government.

The Queensland Government has commenced a review of the Integrity Act 2009 with the release on 12 October 2011 by the Premier of Queensland of the "Review of the Integrity Act 2009 – Issues Paper".

The Integrity Act commenced on 1 January 2010 and saw the establishment of a new integrity regime across the Queensland Public Sector. The key reforms introduced by the Integrity Act included the establishment of the first Australian statutory based framework for the regulation of lobbying activities through the introduction of a Register of Lobbyists, a Lobbyist Code of Conduct and statutory restrictions for Queensland Government officials from dealing with unregistered lobbyists.

These reforms also introduced a two-year moratorium on former senior Queensland Government representatives carrying out lobbying activities that were of relevance to their former employment with the Queensland Government.

As the Integrity Act has now been operational across the Queensland Public Sector for 18 months, the Queensland Government has instituted a review to consult and seek submissions on a range of issues relating to the practical effectiveness, application and operation of the reforms introduced by the Integrity Act. The Issues Paper outlines the nine key questions for consultation as posed by the Queensland Government.

The announcement of the review follows a separate review of the Integrity Act by the Integrity Commissioner, Dr David Solomon AM, earlier this year. The recommendations of the Integrity Commissioner have also been incorporated into the Issues Paper.

Some of the key issues subject to the review as identified in the Issues Paper are set out below.

In-house lobbyists

Currently the Integrity Act provides that the regulatory scheme applies to "third party lobbyists", that is lobbyists who carry out lobbying activities for a third party client.

The Integrity Commissioner has recommended that the definition of "lobbyist" in the Integrity Act be expanded to include in-house lobbyists that are employed by corporations.

Such an amendment would be unique to Queensland, as no other Australian jurisdiction currently regulates the activities of in-house lobbyists.

Incidental lobbying activities

Entities that carry out "incidental lobbying activities" are currently not subject to regulation under the Integrity Act.

An entity will be seen to undertake "incidental lobbying activities" if it carries on a technical or professional occupation in which lobbying activities are only occasionally undertaken as an incidental part of the provision of their core services. The Integrity Act provides as examples the work of lawyers, accountants, engineers and architects.

The Issues Paper explains that the provision was not intended to provide a blanket exemption for professions. Whether lobbying activity is "incidental" will need to be determined on a case-by-case basis.

Stakeholders have indicated that assessing whether lobbying is "incidental" is highly subjective and they have requested further clarification as to the application and operation of the Integrity Act in these circumstances.

To assist in alleviating this confusion, the Integrity Commissioner has recommended that the Integrity Act be amended to state that planning decisions and development approvals are not lobbying activities.

Lobbyist sanctions

The Integrity Commissioner has the statutory responsibility to maintain the Register of Lobbyists and in this capacity has the power to refuse or cancel a lobbyist's registration. Apart from these powers, the Integrity Commissioner has no further powers to penalise a lobbyist for a breach of the Integrity Act.

It has been suggested that the sanctions for lobbyists contained in the Integrity Act are inadequate and should be expanded to include administrative fines, reprimands and striking off from the Register of Lobbyists.

Post-separation employment

The Integrity Act prohibits former senior Queensland Government representatives from conducting lobbying activities for two years from the date when they cease to hold public office where the lobbying activity is related to the public office which they previously held.

The Integrity Act does not restrict lobbying by former Queensland Government representatives in areas unrelated to their previous employment. It has been suggested that this permits lobbyists to make improper use of their contacts in Government (rather than improper use of their knowledge of particular issues).

The review will assess whether the current post-separation employment requirements are appropriate, or whether they should be expanded to cover these circumstances.

Submissions

The due date for submissions to the review is 19 December 2011.

Submissions can be made by email, post or lodged online.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.